A party who refers to a document in a pleading or affidavit cannot then keep it to themselves. Order 9 Rule 9 of the National Court Rules 1983 gives the other side an immediate right to ask for it.
Order 9 Rule 9
(1) Where a pleading or affidavit filed by a party refers to a document, any other party may, by notice to produce served on him, require him to produce the document for inspection.
(2) The notice shall be in Form 32.
(3) The party served shall, within four days after that service, serve a notice —
(a) appointing a time within seven days when, and a place where, the document may be inspected; or
(b) claiming that the document is privileged from production and sufficiently stating the grounds of the privilege; or
(c) stating that the document is not in his possession, custody or power, and stating to the best of his knowledge, information and belief where the document is and in whose possession, custody and power it is.
(4) A notice under sub-rule (3)(a) shall be in Form 33.
The response is due within four days of service — a very short period, and one of the shortest in the Rules. The inspection itself must then be appointed for a time within seven days of that response.
These are the fastest timetables in Order 9, and deliberately so: the document has already been put in issue by the party’s own pleading or affidavit.
Rule 9 does not depend on the close of pleadings, on a notice for discovery, or on an order. It is available as soon as a pleading or affidavit refers to a document.
That has a drafting consequence: referring to a document in an affidavit exposes it to a Rule 9 notice, even at an early interlocutory stage and even in a case where discovery is not otherwise available — a personal injury or fatal accident claim, for instance.
Paragraph (c) is worth noting: a party who does not hold the document must say where it is and who has it, to the best of their knowledge, information and belief. A bare denial of possession does not comply.
Rule 10
Where —
(a) it appears from a list of documents filed by a party that a document is in his possession, custody or power; or
(b) a pleading or affidavit refers to any document; or
(c) it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed that there are grounds for a belief that a document relating to any matter in question is in a party’s possession, custody or power,
the Court may, unless the document is privileged from production, order the party —
(d) to produce the document for inspection at a time and place specified; or
(e) to file and serve a copy of the whole or any part of the document, with or without an affidavit verifying the copy made by a person who has examined the document and the copy.
Where copies are ordered, an affidavit verifying the copy shall, unless the Court orders otherwise, state whether there are in the documents copied any and, if so what, erasures, interlineations or alterations.
That is a valuable protection where a document’s integrity is in question, and it is worth asking for expressly.
Rule 11 — and copying
A party to whom a document is produced for inspection under this Division may make copies of the document.
No further permission is needed. In practice the parties usually agree that copies will simply be provided, at the inspecting party’s expense, rather than arranging a physical inspection.
Remember that the list of documents must itself, under Rule 6(7), appoint a time within seven days after service of the list and a place for inspection — so in the ordinary case inspection follows the list automatically, without any notice being needed.
And under Rule 31(3), serving a list puts the parties in the position they would be in if a notice requiring production at the trial of the listed documents had been served on the date of the list.
Rules 12 and 13
12(1) The Court may, at any stage of any proceedings, order any party to produce to the Court any document in his possession, custody or power relating to any matter in question.
12(2) On production, the Court may deal with the document in such manner as it thinks fit.
13 Where production is sought under Rule 10 or Rule 12 and a claim of privilege or an objection on any other ground is made, the Court may inspect the document for the purpose of deciding the validity of the claim or objection.
Do not ask to see a document over which privilege is claimed. Ask the Court to look at it under Rule 13 and rule on the claim. That is the mechanism the Rules provide, and it protects the privilege if the claim turns out to be good.
Every order in the Division is subject to Rule 14: the Court shall not make an order for production unless satisfied that the order is necessary at the time when the order is made. And failure to comply attracts Rule 15 — up to dismissal of a plaintiff’s claim or striking out a defendant’s defence.
A notice to produce operates between parties. To obtain documents from someone who is not a party, the mechanism is a summons under Order 11 — see summonses to produce and discovery from a non-party.
Sources
- National Court Rules 1983 — O 9 rr 6, 9–15, 31; O 11; Forms 32, 33
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.